KUDYA
J: On 23 June 2008 the plaintiff issued
summons out of this court against the defendant. After the plaintiff furnished
it with the further particulars it requested, the defendant, inter alia, excepted to the summons and
declaration on 3 October 2008. The basis of the exception was that the
defendant had ceased to exist both at the time the cause of action arose and at
the institution of proceedings.
The
cause of action arose on 2 September 2007 when the plaintiff was a fare paying
passenger in an Air Zimbabwe aircraft en route from Singapore
to Harare. The
summons commencing action was served at the head office of Air Zimbabwe (Pvt)
Ltd. In his replication filed by his erstwhile legal practitioners Scanlen and
Holderness, the plaintiff averred that the exception was frivolous and ill
conceived and persisted with his assertion that the defendant was in existence.
It
was directed at the pre-trial conference held on 29 May 2009 that the parties
were to file heads of argument on the exception which was to be argued and
disposed of at the commencement of trial. However, on 26 May 2009 the plaintiff
had filed a Notice of Amendment in which he of his own accord amended some
aspects of his declaration. This document was not dealt with at the pre-trial
conference. On 7 July 2009 the plaintiff through his erstwhile legal
practitioners filed a notice of amendment. He indicated his intention to apply
at the commencement of trial to amend his summons and declaration by the addition
of “'and/or Air Zimbabwe
(Private) Limited' after Air
Zimbabwe Corporation wherever it appears”. On 24 July 2009 the excipient filed heads of argument and the
plaintiff did so on 12 August 2009. It is noteworthy that Messrs Scanlen and
Holderness renounced agency on 17 December 2009; and Messrs Muringi Kamdefwere
who took over from them also renounced agency on 24 June 2010. In argument
before me, the plaintiff relied on the heads of argument filed on his behalf by
his initial legal practitioners.
The
issue raised by the exception is whether or not at the time the cause of action
arose and at the time that summons was issued the defendant was in existence. Mr
Uriri for the excipient contended
that the defendant ceased to exist on 23 March 2000. The plaintiff, on the
other hand contended that the excipient still exists. It is necessary that I provide a historical
overview of the Air Zimbabwe Corporation in order to place the issue in its
proper context.
There
was during the Federation of Rhodesia and Nyasaland
a statutory body called the Central African Airways Corporation, which had the
powers to sue and be sued. On 1 September 1967 the Minister of Transport and
Power, acting in terms of s 9 (1) of the Transport Services (Railways and
Airways) (Transition) Act, No 15/1967, in the Transport Services (Airways) (Establishment
of New Corporation) Notice, RGN 439/1967 dissolved and replaced it by a
corporation of the same name. The name
of the corporation was changed to the Air Rhodesia Corporation on 11 October
1968 by the Air Rhodesia Corporation Act No 32/1968. During the Zimbabwe
Rhodesia era it was renamed the Air Zimbabwe Rhodesia Corporation. After
independence, it was renamed the Air Zimbabwe Corporation by the Amendment of
Laws Order, SI 236/1980.
On
8 May 1998 the Air Zimbabwe Corporation (Repeal) Act No. 4 of 1998 (The Repeal
Act) was brought into operation by General Notice No 195/1998 which was
published in the Government Gazette of that day. The purpose of the Repeal Act, as set out in
the preamble, was “to provide for the dissolution of Air Zimbabwe Corporation
and the transfer of its functions, assets, liabilities and staff to a company
formed for the purpose; to provide for the repeal of the Air Zimbabwe
Corporation Act [Chapter 13:02]; and
to provide for matters connected with or incidental to the foregoing.”
Section 3 of the Repeal Act mandated
the Minister of Transport and Energy to secure the formation of a company
limited by shares in terms of the Companies Act [Cap 24:03] to succeed the Corporation. If such a company was in
existence before the commencement of the Act, the Minster was empowered to
notify the Corporation and direct the company to become the successor to the
Corporation. The company he nominated as the successor company, Air Zimbabwe (Private)
Limited, was already in existence by the time the Repeal Act was published. It
had been incorporated on 20 November 1997.
Section 5 (1) of the Repeal Act directed
the Minister to fix a date for the transfer of all assets and liabilities of
the Corporation to the successor company. He duly transferred the assets and
liabilities of the Corporation on 23 March 2000 through General Notice No 120A/2000.
The Corporation staff, bonds, hypothecations, deeds, contracts, licences,
permits, causes of action and proceedings were in terms of subss (2) to (8) of
s 5 deemed to have been transferred to the successor company on the transfer
date.
Mr
Uriri contended that the excipient was
not in existence in fact and in law both at the time the cause of action
allegedly arose and at the time the proceedings were launched. The plaintiff grounded
his contention that the excipient was in existence on the failure by the President
to repeal the Air Zimbabwe Corporation Act in terms of s 11 of the Repeal Act.
Section 11 reads:
“When the
President is satisfied that the assets and liabilities of the Corporation have
been transferred to the successor company and that nothing remains to be done
under this Act, he shall, by statutory instrument, repeal the Air Zimbabwe
Corporation Act [Cap 13:02].
The
factual position is that in terms of s 5 of the Repeal Act as read with General
Notice 120A of 2000, the excipient was divested of all substance. In my view it
ceased to operate on 23 March 2000. The legal position that existed after 23
March 2000 was that the excipient existed in form only, or as was aptly stated
by the plaintiff in his written heads, “Air Zimbabwe Corporation does exist
albeit as a shell”.
On
23 March 2000, Air Zimbabwe Corporation ceased to hold any utility value. It
could not transact any business. It did not have a board. It did not have
employees. It did not have assets. It could not commit acts of commission or
omission. It could not execute contracts or commit delicts. It did not have offices
to operate from. When the alleged cause of action arose on 2 September 2007 and
when the summons was issued on 18 June 2008, the excipient, was neither dead
nor alive. It was in a state of comatose. The obvious issue that presents
itself is whether in that state it could sue or be sued. The answer, in my view
is found in s 5 (6) of the Repeal Act. It reads:
“Any cause of action or proceeding which
existed or was pending by or against the Corporation immediately before the
transfer date may be enforced or continued, as the case may be, by or against
the successor company on or after the date of transfer in the same way that it
might have been enforced or continued by or against the Corporation had this
Act not been passed.”
In
my view this subsection irrevocably divested the excipient of any power to sue
or to be sued after the transfer date. Thus the shell that remained by virtue
of section 11 of the Repeal Act could not possibly be seized with the power to
sue or be sued. That right was lost forever on 23 March 2000.
It
seems to me that the averment in the exception that the plaintiff sued the
wrong party was properly taken.
The
plaintiff sought to cure the dangers posed by the exception by making an
application to amend his summons commencing action and declaration by addinf
the words after the defendant's name 'and/or Air Zimbabwe (Pvt) Ltd'. He relied
on the profisions of Order 20 r 132, which is predicated on the absance of
prejudice po the party against whom the amendment is so5ght. Mr Uriri contended that the application to
amend summons and declaration in the manner proposed by the plaintiff was a
disguised application firstly for joinder, and secondly for substitution. He
submitted on the authority of Gariya
Safaris (Pvt) Ltd v Van Wyk 1996 (2)
ZLR 246 (H) at 252G-255F that the summons in the present case was a
nullity and as such it could not be rectified by either substitution or
joinder.
In
my view, the amendment sought is a novelty in this jurisdiction as it combines
the conjunctive “and” and the disjunctive “or”. Such an amendment is vague and
embarrassing and would have to be struck out. It does not fulfill the
requirements for a joinder which are contemplated by Order 13 Rule 85 of the
rules of court. The plaintiff failed to demonstrate both some common question
of law or fact and some entitlement to the relief claimed that arises from
transactions performed by both the defendant and Air Zimbabwe (Pvt) Ltd. I agree with Mr
Uriri that the plaintiff sought the
substitution of Air Zimbabwe
(Pvt) Ltd for the defendant under the guise of an application to amend his
summons and declaration. The cases cited in the Gariya case, supra, of Van Heerden v du Plessis 1969 (3) SA 298
(O); Fosa v Commercial Properties (Pty)
Ltd & Anor (1996) 2 All SA 611 (D); Dawson
(Bradford) Ltd &Ors v Dove &
Anor [1971] 1 All ER 554 (QB) and Lazard
Brothers & Co v Midrand Bank Ltd [1933] AC 289 make the point that a
summons which is invalid cannot be rectified by an amendment. See also Stewart Scott Kennedy v Mazongororo Syringes (Private) Limited
1996 (2) ZLR 565 (SC).
The application for amendment must fail on the
basis that the summons issued against the defendant was invalid. In view of the
conclusions that I have reached in regards to the exception and the application
to amend the summons and declaration, it is not necessary for me to determine
the validity of the amendment made mero
motu by the plaintiff on 26 May 2009.
It is accordingly ordered that:
- The defendant's exception be and is hereby upheld.
- The application to amend the plaintiff' summons be
and is hereby dismissed.
- The plaintiff's
claim against the defendant be and is hereby dismissed with costs
Mutumbwa, Mugabe & Associates, the defendant's legal practitioners
